CL v East Riding Yorkshire Council & Ors [2006] EWCA Civ 49

[2006] EWCA Civ 49Case No B4/2005/2248
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Her Honour Judge Davies
Kingston upon Hull County Court
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/02/2006
Before
LORD JUSTICE WALLMR JUSTICE COLERIDGE
Between
CLAppellantEast Riding Yorkshire Council1 st RespondentMB2 nd RespondentBL (A child) (by his Guardian)3 rd Respondent
Mr Stephen Bellamy QC and Miss Gillian Matthews (instructed by Messrs North Yorkshire Law) for AppellantMr Stephen Cobb QC and Miss Taryn Lee (instructed by East Riding Yorkshire Council) for 1st RespondentMrs Exall (instructed by Messrs Thorpe & Co.) for 2 nd RespondentMr Martin Todd (instructed by Williamsons) for Guardian as the 3 rd RespondentHearing Hearing date : 17th January 2006
Judgment

Introduction

[1]CL, the mother of a male child born on 7 January 2005 (whom I will identify by the initials BL) appeals against findings of fact made on 19 September 2005 by Her Honour Judge Davies, sitting in the Kingston upon Hull County Court in care proceedings relating to BL instituted by East Riding Yorkshire Council (the local authority). The mother’s appeal is supported by the child’s father, MB.[2]On 20 December 2005, on paper, I directed an oral hearing on notice to the other parties of what was then the mother’s permission application, with appeal to follow if permission was granted. Detailed skeleton arguments were filed, and both the mother and the local authority were represented before us by leading counsel, neither of whom had appeared before the judge. At the outset of the argument we gave permission to appeal, and at its conclusion we reserved judgment. As there is shortly to be a further hearing before the judge, I propose in this judgment to deal with the matter only to the extent necessary for a proper decision on the issues raised by the appeal. Self-evidently, nothing in what follows is in any way designed to express any view on the ultimate outcome of the case.[3]The local authority took care proceedings relating to BL because of injuries which he suffered on the morning of 1 March 2005 when he was some seven weeks old. There was no dispute about what the injuries were, or about when they occurred. The medical evidence demonstrated, and the judge’s first finding was, that shortly before his admission to hospital on 1 March 2005, BL had suffered the following injuries: -(i) A fracture to the left parietal and occipital bone (skull fracture) with associated “boggy swelling” and some bruising.(ii) An acute subdural haematoma in the left parietal area.(iii) Associated brain swelling.(iv) Marked subarachnoid haemorrhage along the right tentorium border in the pineal area in the interhemispheric fissure.(v) Small hypodense areas in the left frontal lobe consistent with contusion.(vi) A likely distained eye movement disorder as a result of the brain injury. (iv) Marked subarachnoid haemorrhage along the right tentorium border in the pineal area in the interhemispheric fissure. (v) Small hypodense areas in the left frontal lobe consistent with contusion. (vi) A likely distained eye movement disorder as a result of the brain injury.[4]Unsurprisingly and uncontroversially, the judge’s second finding was that these injuries amounted to significant harm. She went on to find, thirdly, that BL’s parents knew that he had suffered serious injuries from his obvious presentation, namely the swelling referred to at (i) above, which manifested itself immediately.[5]So far there is no complaint, nor could there be, about the judge’s findings. Criticism, however, is directed to paragraphs (4) to (6) of her findings, which are in the following terms: - (4) That (BL) suffered these injuries whilst in the care of the parents and that either the mother or the father or both is responsible for them. I am unable to find to the requisite standard the exact circumstances in which he received the injuries. (5) That whichever parent is responsible for the injuries, the other parent failed to protect BL, and that they did so by(a) not calling an ambulance and delaying prompt medical attention;(b) by lying about the circumstances; and(c) by perpetuating those lies for a period of six months. (Italics mine in both instances.) (6) They have colluded together in the course of giving their accounts to the court.

The parents’ case

[6]The parents’ case was and remains that the injuries were caused accidentally. The brief context is as follows. Both parents are 22. BL was their first and only child. They are not married. At the material time, the father was working nights at a supermarket in Scarborough. The parents were living in Bridlington. The mother was not gainfully employed and was at home caring for BL. BL was not an easy baby, and the mother often did not get much sleep. As a consequence, the parents developed the practice of the father feeding BL and generally caring for him for an hour or so when he got home in the mornings from work in order to allow the mother to get some sleep before resuming her care of the child for the rest of the day.[7]Prior to 1 March 2005 nothing untoward had occurred, although on two occasions the parents had summoned an ambulance. On the first occasion the father had insisted on taking BL to hospital, where it transpired he was suffering from conjunctivitis. On the second occasion, it was thought by the parents that an empty CD stack had fallen on BL and injured him. An ambulance was summoned, but when the parents examined BL and found that he showed no signs of injury, the ambulance was cancelled.[8]Initially, the parents’ case was that BL had fractured his skull on 1 March 2005 by rolling off the seat of a chair onto the carpeted floor of their downstairs sitting room, whilst the father, who had been feeding BL downstairs, had gone upstairs to fetch a change of clothes for him. That explanation was, however, discounted by the medical experts in the case, who advised that a fall from such a height (less than two feet onto a carpeted floor) was unlikely to result in the injuries which BL had suffered. They advised, however, that the injuries were consistent with a fall from a greater height.[9]On 24 August 2005, very shortly before the finding of fact hearing, the father filed a fresh statement in which he admitted that his initial explanation was untrue. His revised version was that, having fed BL downstairs, he had been attempting to bring up BL’s wind by walking up and down the sitting room holding the child over his shoulder. He had tripped on the carpet and fallen. BL had been projected onto the ground and had struck his head on the floor.[10]As previously indicated, the father’s second explanation was consistent with the medical evidence. However, there remained a number of unsatisfactory aspects to the parents’ case, including discrepancies not simply between the father’s two versions, but also between the revised versions given by the father and by the mother. By far the most important of these was the fact that in her first statement, the mother had echoed the father’s version, namely that the injuries had occurred when the father had come upstairs to fetch a change of clothing for BL. The sequence of events which she had described was that BL had then cried and the father had rushed downstairs to see what had happened. On the father’s revised version, however, he had never gone upstairs, because BL had been handed to him by the mother downstairs, and she had then gone back to bed. The mother must, therefore, have known that when she and the father put forward their original version, her description of the father rushing downstairs in response to BL’s cries was untrue.[11]Further inconsistencies derived from the fact that neither parent in their statements had mentioned a fact which emerged only in oral evidence, namely that on 1 March 2005, their landlady had called in the early morning, before the father’s return, to collect the rent. The mother had come downstairs with BL to deal with the landlady, who was still there when the father came home. The mother in evidence said that she had given BL to the father before going back to bed. Her evidence was that what woke her was BL screaming, followed by the father shouting up the stairs to her to come down. This was inconsistent with the father’s version, namely that BL appeared lifeless after the fall, and only began to cry after the father had shouted to the mother up the stairs.[12]A further feature of the case was that the parents did not immediately summon an ambulance. The father said he wanted to, but that the mother talked him out of it. The mother was concerned that they would be considered to be wasting the time of the ambulance service given the two previous occasions which I have mentioned. As it happened, BL was in any event due to be taken to the Health Visitor that morning for a regular check. The parents duly took BL to the clinic: the Health Visitor looked at BL’s head and advised the parents to take him to the minor injuries unit of the local hospital. The Health Visitor had not thought to summon an ambulance, nor did she advise the parents to do so. The Health Visitor was, however, given the father’s first version of events, and was not told that the child had been rendered unconscious. By the time they reached the Health Visitor, the parents’ evidence was that BL appeared to have settled.

The forensic history prior to the hearing before the judge

[13]There is no doubt at all that the father’s late change of story contained in his statement made on 24 August 2005 caused substantial difficulties for all the parties and for the judge. Prior to that date, the local authority’s perception was that BL had suffered a serious injury in the care of his parents, for which there was no satisfactory explanation. Whilst the medical consensus was that the likely cause was a single impact of sufficient force to fracture the skull, such as a fall from a substantial height, the injuries themselves were not pathognomonic of non-accidental injury. They could have been caused by an accident: equally, they could have been caused deliberately.[14]The judge was conducting a fact finding hearing. What were the factual issues she was being asked to resolve? We asked to see the interlocutory orders setting up the hearing. On 18 March 2005, His Honour Judge Jack directed, by consent, a five day finding of fact hearing on 5 September 2005, released the papers to Dr. Neil Stoodley, a consultant neuro-radiologist, who was to report by 27 June 2005 and listed the case for further directions on 8 April 2005. The purpose of the hearing was not identified. On 20 April 2005, His Honour Judge Dowse gave permission for a paediatric overview (to be completed by 27 June 2005) and directed an advocates meeting to take place the same day (20 April 2005). The case was to remain listed for findings of fact on 5 September 2005. Once again, the proposed findings are not identified.[15]On 1 July 2005, the local authority, by consent, was ordered to “file and serve a schedule of findings by 4.00pm on 22 July 2005”. The document which the local authority filed on 2 August 2005 was, however, headed “Draft Threshold Criteria”. Its first five paragraphs, as originally drafted, dealt with physical harm. Paragraphs 6 to 12 dealt with concerns about the mental health of both parents and about their relationship, as well as the mother’s past use of illegal drugs, attempted suicide and self-harming behaviour. Paragraphs 13 and 14 criticised the parents’ interaction with BL, and 16 and 17 reverted to BL’s injuries. As this document was amended during the course of the hearing, it is, I think, helpful to examine(a) how the relevant parts originally read;(b) the respects in which they were amended; and(c) the extent to which the judge’s findings followed the amended version.[16]Although there were minor amendments to the identified injuries, these are not material for present purposes. Paragraphs 2 to 5 of the document, however, as originally drafted, read as follows: 2. There is uncertainty at the present time as to whether BL has sustained fractured ribs during the episode on 1st March 2005. (A further opinion is being sought) 3. These injuries, are more likely than not to have resulted from one incident which was either –(a) a shaking episode(b) an impact injury associated with a drop / fall from a height 4. BL may have continuing difficulties with his eyesight as a result of the head injury he sustained on the 1st March 2005. (Awaiting addendum report). 5. BL has also had a five storey CD tower fall onto him, when 4 weeks of age, in circumstances which are not entirely clear.

(b) an impact injury associated with a drop / fall from a height

[17]Paragraphs 16 and 17, as originally drafted, read as follows: - “PERPETRATOR AND FAILURE TO PROTECT The parties are put on notice that the following findings may be sought dependant on how the oral evidence presents itself during the finding of fact hearing. 16. BL suffered the physical injuries (para 1 – 4) whilst in the care of his parents and that either the mother, the father, or both are responsible for the said injuries. 17. Whichever parent is responsible for the injuries the other parent failed to protect BL and/or the parents colluded about what happened to prevent the professionals from discovering what really happened to BL on 1 March 2005. The document concludes with the words: It is noted and acknowledged by the applicant local authority, that some of the findings outlined above may be pursued at a later hearing following further assessment of the parents.” It is noted and acknowledged by the applicant local authority, that some of the findings outlined above may be pursued at a later hearing following further assessment of the parents.”[18]It is self-evident from this document as a whole that the local authority was not relying solely on the fact of BL’s injuries in order to satisfy the threshold criteria under section 31 of the Children Act 1989. It is, however, equally plain that it was, in its threshold document, relying on the injuries to BL for that purpose, and seeking a finding that BL’s injuries were caused non-accidentally in a shaking episode. The threshold document does not, however, distinguish between the issues in relation to which findings of fact were to be sought on 5 September, and those which “may be pursued at a later hearing”.[19]In my judgment, this is unsatisfactory, although it does not affect the outcome of this appeal. Normally, a split hearing occurs because the threshold criteria will only be satisfied if a particular fact is established, or because assessments of parents necessary for the proper resolution of the final hearing cannot be completed without knowing the factual basis upon which those assessments are to be made. If it is sought to satisfy the threshold criteria on a variety of bases, as here, it is, in my judgment, necessary to define with clarity precisely what it is the local authority is inviting the court to find, particularly where the court has direct a split hearing of the proceedings. In the instant case, it was only at the outset of the hearing that counsel for the local authority informed the judge that the findings sought related exclusively to BL’s physical injuries.

The hearing before the judge

[20]Fortunately, although it arrived only very shortly before we heard the argument in this appeal, we have a transcript of the hearing before the judge on 6 and 7 September 2005, from which it is apparent that the parties had attended on the previous day when substantial discussions between counsel had taken place, and counsel for the local authority had been able to take instructions on the latest developments in the case. The transcript on 6 September 2005 identifies the local authority’s dilemma. The father’s revised version of events had been put to a meeting of the experts on 25 August 2005. Counsel reported to the judge the experts’ view that if there were no rib fractures, the injuries that BL had sustained on 1 March could well be consistent with the second explanation given by the father.[21]Confirmation that there were no rib fractures was received before the court sat on 6 September 2005. Counsel accordingly told the judge that the local authority accepted the medical evidence that “this is one incident of injury caused by an impact to the head likely to have been caused by a drop from a height”. The allegation that BL had been shaken was abandoned. However, counsel went on to say that:
“what the local authority are concerned about and what they are not clear about is the exact circumstances in which that happened”
. Counsel accordingly invited the judge to “consider evidence being called from both the mother and the father just to explore the original explanation and the subsequent explanation that has been given and to explore also the mother’s knowledge about that”.[22]Counsel also invited the judge to make a number of amendments to the threshold criteria document. Once again, I omit the minor amendments to paragraph 1 which, for present purposes are immaterial. Paragraph 2 relating to the possible rib injuries was deleted. Paragraph 3 was amended to delete the reference to a shaking episode and read: - “These injuries are more likely than not to have resulted from one incident which was an impact injury associated with a drop / fall from a height.” Paragraph 5, which related to the CD tower, was deleted. In relation to paragraph 16 (which, as we shall see, was the subject of further discussion and amendment after evidence had been called) counsel for the local authority said to the judge: - “In relation to the original paragraph 16, your honour, that should perhaps now read that BL suffered physical injuries whilst in the care of his parents and that the father is responsible for the said injuries. And then in relation to paragraph 17, the local authority wish to explore whether the mother has failed to protect BL or indeed whether the parents have colluded over what happened. And, your honour, the local authority accept that the evidence may not show either failure to protect or collusion but they would like the opportunity to explore that. Your Honour, it is proposed that the only evidence to be heard before the court is the father and the mother….”[23]Counsel for the parents did not object to their clients being called. In my judgment, they were wise not to do so. Although the court was conducting the first limb of a split hearing, in which it was for the local authority to establish that the threshold criteria under section 31(2) of the Children Act 1989 were satisfied, the local authority was entitled to wish to test the father’s change of evidence, and to invite the judge to examine it critically. Given that the course was unusual, however, care had to be taken to ensure that the process was fair. The parents were both represented, and counsel for the mother put down what in my judgment was an apposite marker. She said: - “Your Honour, might I just say that it is not agreed that that will be the only evidence. That depends on what the local authority pursue in cross-examination, obviously. ”[24]Both parents then gave evidence and were cross-examined. Both acknowledged, as they were bound to do, that they had been untruthful. In the father’s case, this was, of course, self-evident. As I have already stated, however, it was only during the course of the father’s evidence in chief that, for the first time, the presence of the landlady on March 1 emerged. It then became clear that the parents had agreed not to mention her presence in their statements. The father had to acknowledge a number of other discrepancies between his two versions. For example, at one point he had said he was very tired that morning: at another he had said he was not. The principal discrepancies between the parents’ versions were, however, those which I have already identified, namely(1) the evidence that, following BL’s injuries, the father had shouted up the stairs as opposed to running down them; and(2) whether or not the mother had been wakened by BL’s screams or the father’s shouts for her to come down.[25]The father was cross-examined about the failure by both parents to mention the presence of the landlady in their statements. “Q. So why is it that both of you seem to say the same thing, that she was in bed feeding BL when you got home from work? A. I’d already said it and (CL) just agreed with me on it. Q. Well, is it that you spoke to one another about what you were going to say beforehand? A. I’d made my statement to Dr Faulkner first and (CL) just basically followed that statement because it’s all that she could believe, the whole statement afterwards, she followed the first part of it.”[26]It was put to the father in terms that the mother was covering up for him. He denied it.[27]The mother was also constrained to acknowledge a number of lies. She had no explanation for why she had not mentioned the landlady in her statement to the court. She acknowledged that her court statement was misleading and she further admitted that she and the father had “talked about it and decided to maintain the same version” in their statements, even though they both knew it was not true. She was also cross-examined on the discrepancies in her evidence about the father running down the stairs as opposed to shouting up them, and whether BL screaming had wakened her, or whether she had first heard the father shouting. Putting the matter neutrally, it was plainly open to the judge to find her evidence on these points, and on the failure to call an ambulance, unsatisfactory.[28]The parents’ evidence on 6 September 2005 finished at a point in the afternoon at which it was convenient to adjourn for everyone to take stock. In the morning, counsel for the local authority addressed the judge and told her that nobody wished to call any further evidence. There was then further extensive discussion between counsel for the local authority and the judge in relation to precisely what findings the local authority was inviting the judge to make, and what findings it was open to the judge to make.[29]For present purposes, the relevant debate centres on what I will continue to call paragraphs 16 and 17 under the heading PERPETRATOR AND FAILURE TO PROTECT. I have set out the original draft at paragraph 17 of this judgment, and the amendment proposed by counsel for the local authority prior to evidence being called at paragraph 22. That amendment had, of course, identified the father as “responsible” for the injuries. In her submissions to the judge, counsel for the local authority queried whether, on the evidence the judge had heard, the mother could be ruled out as a perpetrator. Miss Lee accepted, however, the following proposition stated by the judge namely:
“Well, it seems to me that the only clear finding I could make is that the injury occurred following impact from a high drop”
. Slightly later the judge said: “I could not find, unless I was powerfully persuaded to do so, that it was as the father described. The highest the evidence goes, it seems to me, is that he was injured in this way as a result of a fall……accidental or otherwise”.[30]The exchanges continue with counsel stating that the local authority was still unclear about whether the injuries were caused accidentally or non-accidentally because of the lies told by the parents. The judge intervenes, and the following exchange occurs: - “Judge: And that is why the finding that you seek at 16 is as neutral as it is? Counsel: Yes. Judge: Because what you are now saying is that he suffered the injuries whilst in the care of his parents. Do you say it should be either the mother or the father? Counsel: Yes Judge: Without the word “responsible? Because you are saying you cannot rule out accident. Counsel: Yes, I think that has to follow, your Honour, yes. I do not think the court can definitely say one way or the – Judge: Because responsibility in that context means guilt. Counsel Yes, and certainly I would submit on behalf of the local authority that on the basis of the evidence and the fact that both parents accept that they have lied, the court cannot rule in or out that this was accidental or non-accidental. Judge: Right. So the finding is that BL suffered the physical injuries whilst in the care of his parents, either the mother or the father, and end it there. Is that what you are saying? And does it come down in the end to failure to protect or does it go further than failure to protect? Counsel: Well, your Honour, herein lies the difficulty. If I can deal with – Judge: Do the admitted lies enable me to go any further?” Counsel: Yes

Counsel: Well, your Honour, herein lies the difficulty. If I can deal with –

[31]Counsel did not answer the judge’s question directly. The judge, however, was plainly concerned about the wording of paragraph 16, because she brings counsel back to it. She points out that it is not in dispute that BL suffered the injuries in the care of his parents, but that both parents are saying that the injuries were accidental. Counsel suggests that the finding should be worded in such a way that they were “caused by either the mother or the father”.

The judge comments:

“It is the word “caused”
I think that is causing me bother”.[32]After further submissions, the judge invites counsel for the parents to address her. Counsel for the father immediately raises the question of the wording of paragraph 16. The judge invites counsel for the local authority to clarify the finding she is seeking. The final wording, as expressed by counsel, is as follows: - “BL suffered the physical injuries whilst in the care of his parents. They were caused by either father or mother or both and the court cannot be satisfied to the requisite standard as to whether those injuries are accidental or non-accidental. ”[33]Paragraph 17 remained as originally drafted.

The judgment

[34]The judge conducted a careful and thorough review of the evidence. She then explains the unusual course which the case took: - “35. At the beginning of this case I was invited by the local authority, which accepted in view of the expert evidence that the injuries were likely to have been caused on one incident of a drop from height, to hear evidence from the parents as to the circumstances in which they say the incident happened, and why they have lied and perpetuated their lies for almost six months. I agreed to such a proposal. In a case such as this where credibility is in issue it is very difficult to assess parties without seeing them in the witness box and hearing their reaction to questioning. Experience has shown time and time again the importance of evaluating witnesses in this case, and this case is no exception.36. All parties concede that this case developed in a way that no-one had expected because of the additional and significant further matters advanced in evidence, and the inconsistencies between the accounts now given by the father and the mother and to which I have already referred. This presented Miss Lee on behalf of the local authority with an unforeseen dilemma and argument took place as to whether, on the evidence called before me now and without the testing of the medical evidence, it would be possible to consider making a finding that the court could not be satisfied to the relevant standard whether the injuries were accidental or non-accidental, and whether it would be necessary to call medical evidence to address the parents’ change of account. Miss Matthews on behalf of the mother fairly conceded that the outcome of such questioning may not be favourable to the parents.37. Miss Lee on behalf of the local authority asked for time to consider her position and having done so invited me to make the finding originally sought namely that BL suffered physical injuries whilst in the care of his parents and that either the mother or the father were responsible (sic) “[35]The judge rejected the parents’ argument that she should find as a fact that the injuries were caused accidentally. All that the medical evidence demonstrated, she found, was the likely mechanism of the injuries, which were consistent with either an accidental or a non-accidental causation. She therefore concluded: - “45. There is no dispute that BL was injured in the care of both his parents. There is conflicting evidence, even now, as to their accounts. At this stage, I am unable on the evidence to find how these injuries occurred save that they occurred whilst in the care of his parents, and that either the mother or the father or both are responsible. My finding cannot go further. I simply do not know what happened. 46. Nor am I in a position on the evidence, and bearing in mind that they have both lied, to find or indicate who is likely to be the more culpable. I have borne in mind the decision of the House of Lords in Re O and M (sic) and Re B [2003] 1 FLR 1169, and the judgment of Thorpe LJ in the decision in Re B when it came before the Court of Appeal.”[36]The judge then turned to the questions of failure to protect and collusion. She found both. As to the former, she was highly critical of the parents’ failure to summon an ambulance. As to the latter, she said: - “50. I have touched several times in this judgment on the credibility of the parents. I have no hesitation in drawing adverse inferences against them from their lack of candour. I am satisfied on the evidence that they have colluded with each other. Even on the mother’s present account if it be true, she has had ample opportunity to correct the account she gave initially. In almost every case where a child sustains an injury, the doctors impress upon the court the importance of obtaining as soon as possible an accurate history. The mother, even on her own account, colluded with the father by deciding to stick with his account, or to use her words “We kept with this one”. I note that she has told me in evidence that she wants to stay with the father and thinks she can. It is inconceivable, in my judgment, that they did not discuss the events at the time and subsequently. ”

The attack on the judgment

[37]In her appellant’s notice, the mother raises a number of grounds of appeal. Her primary submission is that the procedure adopted at the trial was manifestly unfair. She argues that only limited evidence was required from the parents after the father had made his admission of accidentally dropping the child, an account which the medical experts considered consistent with the clinical findings. She complains that after the close of evidence the local authority changed the findings it was seeking against the parents on a number of occasions with little if any notice, thereby preventing a fair trial taking place. Thus the mother and her legal advisors had not known until after submissions had begun that the local authority had changed its position and was seeking findings(1) that the injuries may be non-accidental and(2) caused by either her or the father or both.[38]Counsel submitted that if the mother and her representatives had been aware that such radically different findings were going to be sought, a different approach would have been taken to the conduct of the trial and the evidence to be called and tested. In sum, the mother has been prevented by an irregular procedure from properly defending herself.[39]The mother further argued that the judge erred in failing to hear medical evidence, despite having been asked to do so by counsel for the mother during the course of her submissions. Such evidence could have assisted to clarify whether the injuries were accidental or non-accidental, given that the local authority had changed its position to cast doubt over an accidental causation.[40]The mother further argued that the judge failed properly or at all to consider the parents’ cases separately and to assess whether the fact that the father was a proven liar over a substantial period to the mother, the court, the doctors and all the parties affected his credibility where his evidence might undermine that of the mother.[41]The mother argued that the judge was wrong to find that the failure to call an ambulance constituted a failure to protect. She pointed out that this was not a finding that the local authority had sought; moreover the judge had failed to address the parents’ argument that the Health Visitor who saw him that morning also did not consider it appropriate to call an ambulance.[42]The mother thus sought a re-hearing in which the local authority set out in advance what findings it sought on the basis of the evidence filed, with witnesses being called and tested and with the mother and her legal representatives knowing what case they had to meet. Alternatively, the mother sought substituted findings that the causation of the injuries was;(1) accidental;(2) by the Father; and(3) in the absence of the Mother. In respect of all other findings made in the hearing the mother submitted that they were tainted by the irregular procedure employed and should be set aside.

The case for the local authority

[43]For the local authority, Mr. Stephen Cobb QC and his junior Miss Lee produced a lengthy skeleton argument of considerable erudition, which contains a scholarly analysis of all the leading cases in care proceedings on causation, the standard of proof and the difficulties involved in identifying perpetrators of abuse. Whilst the body of the document is a skilful defence of the judgment, counsel departed from the judge in identifying the manner in which the threshold criteria could properly be held to have been established on the facts she found. In my judgment, that departure, as I shall attempt to demonstrate, is both significant and correct. I will, accordingly, set out Mr. Cobb’s and Miss Lee’s submission at this point: - “47. It is submitted on behalf of the local authority that based on the learned judges findings the threshold criteria is (sic) established on the judge’s findings on the following basis: BL suffered serious physical injury while in the care of his parents on the 1st March 2005; those injuries are defined as: - Fracture of the left parietal and occipital bone, with associated boggy swelling and bruising - Acute subdural haematoma - Brain Swelling - Subarachnoid haemorrhage - Likely distained eye movement disorder Whilst the court has not found it possible to determine how these injuries were caused, BL suffered and/or is likely to suffer significant harm having regard to the failure of his parents or either of them:(a) Adequately or promptly to seek medical attention for BL on the 1st March 2005 and(b) To give a true explanation for the injuries to the treating medical and other professionals, in respect of the serious physical injuries outlined above. (italics mine) - Fracture of the left parietal and occipital bone, with associated boggy swelling and bruising - Acute subdural haematoma - Brain Swelling - Subarachnoid haemorrhage - Likely distained eye movement disorder Analysis (1). Collusion and failure to protect[44]I say at once that, in my judgment, no legitimate criticism can be made of the judge’s findings in so far as they relate to parental collusion and failure to protect. In each area there was material upon which she could properly make such findings. In relation to the failure to call an ambulance, for example, the mother’s own evidence in cross-examination had been:
“I know, it’s stupid of us, but it’s done now, I can’t change it”
. Whilst it might have been preferable for the judge to have dealt with the fact that the Health Visitor had not advised that an ambulance be called, the answer to that part of the parents’ case was readily apparent. As I have already pointed out in paragraph 12 of this judgment, the Health Visitor had been given the father’s first version of the injuries. She had not been told the child had been rendered unconscious.[45]It does not appear that an application was made for the Health Visitor to be called. Whilst oral evidence from the Health Visitor may well have clarified the position, I think it unlikely that it would have prevented the judge from making her finding that the parents failed to protect BL by not calling an ambulance immediately. The father had described BL’s presentation immediately after the injuries: BL was effectively unconscious; the father was worried about his breathing; there was an immediate swelling to his head. Although the judge put it strongly, she was, I think, entitled to find that: “It is inconceivable, in my judgment, that any caring parent in such circumstances would fail to call an ambulance immediately”.[46]The finding of collusion stands out from the parents’ evidence. For example, in a passage I have already referred in paragraph 26 of this judgment, the mother admits a discussion with the father as to the landlady’s presence on 1 March, and to an agreement with the father to maintain the same version, even though she knew it was not true. Both parents admitted a number of lies, and in my judgment, the judge was entitled to make findings of collusion based on those lies. (2) Perpetrator, “caused” and “responsible”[47]I have, however, come to the clear conclusion that the mother has a legitimate complaint in relation to the judge’s findings as to causation and perpetration. To explain my reasoning, it is necessary to go back to first principles. I start, therefore, with the words of section 31 of the Children Act 1989 - “31. Care and supervision orders(1) On the application of any local authority or authorised person, the court may make an order (a) placing the child with respect to whom the application is made in the care of a designated local authority; or (b) putting him under the supervision of a designated local authority.(2) A court may only make a care order or supervision order if it is satisfied— (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to— (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him….. (a) placing the child with respect to whom the application is made in the care of a designated local authority; or (b) putting him under the supervision of a designated local authority. (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to— (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him…..[48]It is trite law that the burden of proof is on the local authority, and equally trite law that the standard of proof is that identified in the speech by Lord Nicholls for the majority in the decision of the House of Lords in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, which I need not set out.[49]In the instant case, therefore, the burden was on the local authority to prove that BL’s injuries were non-accidentally caused. It could not do so. Indeed, it expressly abandoned the allegation that BL had been shaken when he was found not to have any rib injuries – see paragraphs 20 to 22 of this judgment. In my judgment, the abandonment by the local authority of the allegation that the injuries were non-accidental is highly significant. However, whilst the implications of this critical change of stance in the local authority’s position were appreciated by the judge in argument, they were not carried through into her judgment.[50]The inevitable consequences of the abandonment of the allegation of shaking were, in my judgment, twofold. The first was, as the local authority acknowledged, that it was unable to prove that the injuries were non-accidental: the second was that the occurrence of the injuries, by itself, was not sufficient to satisfy the threshold criteria under section 31.[51]The wording of section 31(2) requires the local authority to prove that the significant harm suffered by the child (in this case the injuries) was attributable to the care given to BL by his parents “not being what it would be reasonable to expect a parent to give to him”. A child may receive serious accidental injuries whilst in the care of his or her parents, even where those parents are both conscientious and competent. Such injuries plainly do not fall within section 31(2).[52]The words of section 31(2) of the Children Act 1989, translated into everyday language and experience mean that in order to satisfy the threshold criteria, the local authority must prove that an injury is non-accidental. Once that finding can properly be made, the question of perpetrator arises. In many cases, where the injuries are pathognomonic of abuse, the medical evidence points overwhelmingly to non-accidental injury, and the judge is able to find on the medical evidence that non-accidental injury occurred. In such cases, if the judge cannot identify the perpetrator, it is often sufficient to satisfy the threshold criteria for the judge to find that the child was non-accidentally injured in the care of his parents and that either or both is / are responsible. To put the same point a different way, a finding of non-accidental injury to a child whilst in the care of his or her parents plainly satisfied the language of section 31(2) of the Children Act 1989.[53]In my judgment, however, such considerations do not apply when, as here, the local authority cannot satisfy the court that the injuries were inflicted non-accidentally. Thus it is not open to the local authority, on the facts of the instant case, to use the fact of the injuries to BL as a basis for submitting that the threshold criteria are established in relation to the injuries, and that one of both of the parents is / are responsible.[54]Accordingly, in my judgment, in so far as the judge found that the threshold criteria were satisfied because “either the mother or the father was responsible for them” (the injuries), she was wrong to do so. The injuries simply did not satisfy the threshold criteria, and it was not open to the judge to allocate responsibility or guilt or to say that one or other of the parents had caused them.[55]This does not, of course, mean that the injuries are irrelevant or have to be left out of account. The local authority is entitled to rely, where appropriate, on the behaviour of a child’s parents in relation to an unexplained or even to an accidental injury. The failure to call the ambulance and the collusion over what was plainly an untrue account of the injuries are both relevant to the threshold criteria. Thus in the language of section 31(2), the judge was entitled to find that the failure to call the ambulance could legitimately constitute a proper basis for the proposition that BL was likely to suffer significant harm due to the parents’ failure to ensure that he received immediate treatment. Similarly, parents who lie about their child’s injuries may be behaving in a manner which, once again, falls fair and square within section 31(2), even if those injuries are accidental.[56]In my judgment, the judge was feeling her way towards the correct solution in the exchanges between herself and the local authority which I have set out at paragraph 29 to 31 of this judgment. She could not, within the section 31(2) context say that the parents were “responsible” for the injuries or that they were “caused” by the mother or the father. In those exchanges, which took place after evidence had been called, the judge was correct in her observations, and it is, perhaps, unfortunate that in the period over which the judgment was reserved, she appears to have changed her mind.[57]Having found that the judge was wrong to import the concept of “responsibility” into her findings, the removal of that concept has the effect, in my judgment , of curing any potential unfairness in the hearing. The danger of the course adopted by the judge was that it ran the risk of reversing the burden of proof. It was not for the parents to prove that the injuries were accidental: it was for the local authority to prove that they were non-accidental. If the local authority had maintained its stance that the injuries were non-accidental, it would have been plainly unfair not to allow the parents the opportunity to cross-examine Dr. Stoodley, although I suspect that the furthest he would have gone – or could properly go – was to say that the father’s revised version of events was consistent with the injuries BL had suffered. The parents had, however, already in my view achieved all they could achieve in relation to the injuries as a trigger for the threshold criteria by the local authority’s abandonment of the allegation that BL had been shaken.[58]It was, I think, unfortunate that the local authority did not limit the findings it sought to collusion and failure to protect, and that the final version of the findings it sought were as set out in paragraph 32 of this judgment. It is equally unfortunate, in my judgment, that as I have already indicated, the judge, over the short period she reserved judgment, did not maintain the stance she had adopted in argument, as set out in paragraph 30 of this judgment. Speaking for myself, however, I find it difficult to be critical of either counsel or the judge. Counsel was having to amend in the midst of submissions, and the situation in which the parties found themselves was the plain responsibility of the parents, who had not been frank. If there is a message to be derived from this case it is that parents who tell lies about the circumstances in which their children are injured have only themselves to blame if the court draws adverse inferences from their lies.[59]In the instant case, however, it is not, in my judgment, proper to draw an adverse inference which satisfies the threshold under section 31(2) of the Children Act 1989 by a finding that either parents was, or both of them were “responsible” for BL’s injuries.

Outcome

[60]If the findings made by the judge had been those specified by Mr. Cobb and Miss Lee, as set out at paragraph 47 of their skeleton argument (paragraph 43 of this judgment) I would, speaking for myself, have dismissed this appeal. It therefore seems to me that the most sensible way of disposing of this appeal is to allow it to the limited extent of substituting for paragraphs 4 and 5 of the judge’s findings (as set out in paragraph 5 of the Court of Appeal Judgment) paragraph 47 of Mr. Cobb’s and Miss Lee’s skeleton (with modifications).[61]I would, accordingly, allow the appeal to that limited extent. It seems to me that it would be unfair to both parents, but particularly to the mother, for her to have to go into the assessment phase of the case with those assessing her bound to treat her as a potential perpetrator of the injuries to BL.[62]I agree that this appeal must be allowed to the limited extent set out by Lord Justice Wall and for the reasons he gives. The retention of the word “responsible” within the body of the findings carried with it a potential for unfairness to both parents but particularly to the mother. Guilt by implication or association is to be avoided. If the local authority is unable to establish to the requisite standard that injuries are caused non-accidentally there can be no such animal as a “neutral” finding. Absent the father’s change of evidence/explanation in this case, it would, I think, have been open to the judge to make a finding of non-accidental injuries. However, that was not the question with which the judge was presented.[63]Findings of fact in relation to injuries must always be as clear and focused as the evidence allows but go no further otherwise there is a risk that those charged with the later task of assessment (after the fact finding) proceed on the wrong basis and focus on the wrong risk.

Cited in 1 later judgment